Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Alvaton Fire Department 1 violated the Kentucky Open Records Act in denying Tim Witten's April 30, 2012, request for seventeen (17) categories of records, including but not limited to attendance reports, the 2012 Department roster effective April 26, 2012, minutes of particular Department Board meetings, certain Department policies and requirements, notes and e-mails regarding particular subjects, and the "Department Grant Request to Homeland Security for a SAFER grant," including "any documentation on how the grant was to be used by the [Department]." More specifically, the question presented is whether the Department can be properly characterized as a "public agency" within the meaning of KRS 61.870(1). In a timely written response, Chief George A. Merkle acknowledged receipt of Mr. Witten's request but advised that "the Alvaton Fire Department is a non-profit 501c3 [sic] created under the authority of KRS Chapter 273 and not a public agency as defined in KRS 61.870(1)(a) through (k)" because it "does not receive 25% or greater of it's [sic] funding from local, or State funding and therefore is a private organization." Quoting 96-ORD-120, Chief Merkle noted that in addressing volunteer fire departments, the Attorney General has recognized that "[t]he only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds."
Relying on the fact that the Department "received approximately $ 126,000 from the Warren County Sheriff's Department from subscribers [sic] fees included on the property tax bill," and has "also received a Federal Emergency Management Agency SAER [sic] [Staffing for Adequate Fire and Emergency Response] grant for $ 123,650 on 4/22/2011," Mr. Witten subsequently filed this appeal, including a copy of Warren Fiscal Court Ordinance No. 04-23, Regulating the Collection of Subscriber Fees/Membership Dues for Fire Departments, and the list of SAFER grants 2 awarded in 2010 from the FEMA website as verification. Upon receiving notification of Mr. Witten's appeal from this office, Chief Merkle supplemented his original response on behalf of the Department, quoting relevant excerpts from 06-ORD-085 which refute Mr. Witten's characterization of the subscriber fees included on property tax bills, and establish that federal grant funding is not relevant under KRS 61.870(1)(h), respectively. When viewed in light of 06-ORD-085 (holding that membership charges/subscriber fees authorized under KRS 75.450 cannot be properly characterized as local authority funds), the evidence presented confirms that the Department does not derive any of its funding from state or local authority funds; accordingly, the Department's denial of Mr. Witten's request is affirmed.
In 06-ORD-085, the Attorney General was asked to determine whether the Madisonville Fire Department, Inc., a "nonprofit corporation organized by private individuals," could be properly characterized as a "public agency" within the meaning of KRS 61.870(1). Like Mr. Witten, the appellant in that case argued that MFD received more than twenty-five percent (25%) of its "'revenue from state, federal, and local governments,'" emphasizing that MFD had received federal grant funds (fifty-two percent (52%) of revenue), and that "annual fire dues of the MFD 'are placed on the county tax bills, collected by the Sheriff of Daviess County and dispersed by the Daviess County Sheriff['s] Department.'" Specifically, thirty-nine percent (39%) of MFD revenue was derived from "membership charges," which pursuant to KRS 75.450(7) were added to property tax bills. As in the instant appeal, resolution of the question presented there hinged upon whether the records in dispute were "public records" within the meaning of KRS 61.870(2), 3 which, in turn, depended upon whether MFD was a "public agency" within the meaning of KRS 61.870(1).
Relying upon KRS 61.870(1)(h), 4 this office has consistently recognized that "a private agency does not come within the purview of the Open Records Act unless it derives at least twenty-five percent of the funds expended by it in the Commonwealth from state or local authority funds." 97-ORD-114, p. 1; 95-ORD-79. As the Department correctly observed, in 96-ORD-120, this office recognized that a volunteer fire department, "sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned," can only be considered a "public agency" if 25% of the funds it expends in the Commonwealth of Kentucky is derived from state or local authority funds per KRS 61.870(1)(h). Id., p. 2. Further, in rejecting the appellant's position that federal grant funds must be considered, in 06-ORD-085 this office noted that "[b]y its express terms, KRS 61.870(1)(h) encompasses only state or local authority funds; the percentage of funding derived from other sources, including federal, is irrelevant." Id., p. 7 (original emphasis). Mr. Witten's argument in this vein is equally unpersuasive; accordingly, the remaining question here, as in that appeal, is "whether the membership charges/subscriber fees authorized by KRS 75.450 are properly characterized as local authority funds . . . which, in turn, depends upon whether the charges/fees are the functional equivalent of taxes." 06-ORD-085, p. 8.
Initially observing that "a volunteer fire department, organized as a nonprofit corporation, is not empowered to impose taxes," the Attorney General concluded that said charges/fees cannot be properly so characterized. Ninety percent (90%) of the Department's "operating and capital budget comes from [such] voluntary dues." http://www.alvatonfire.com/annual-dues/. Accordingly, the following excerpt from 06-ORD-085, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented:
While taxes come in many forms, "taxes" do not include "fire and flood service fees." Id. In our view, the membership charges or subscriber fees at issue are, by definition, not taxes, as the clerk adds the charges/fees to the tax bills of the affected property owners (members/subscribers) only; KRS 75.450(2) lists the fees charged for services rendered to nonmembers or nonsubscribers, with the necessary implication being that belonging/subscribing is voluntary. By enacting KRS 75.450(7) and (8), the General Assembly created a mechanism by which the charges/fees shall be collected and distributed, implicitly distinguishing same from the fire district tax or fire subdistrict tax listed separately on the tax bills pursuant to KRS 75.450(7); the character of the funds is not determined by the manner in which the charges/fees are collected and distributed. When evidence has been introduced that a corporation derives less than 25% of its funding from state or local authorities, as is the case here, the Attorney General has recognized that the corporation cannot properly be characterized as a public agency. 05-ORD-097; 99-ORD-152; 96-ORD-127; 93-ORD-90.
Because the membership charges or subscriber fees received by the [Department] are not properly characterized as local authority funds, nor does the [Department] otherwise derive at least 25% of the funds expended by it in the Commonwealth from state or local authority funds, the [Department] is not a public agency subject to the provisions of the Open Records Act. In light of this determination, the [Department] cannot be said to have violated the Act in declining to honor Mr. [Witten's] request.
Id., pp. 8-9. See also 06-ORD-213.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Tim WittenGeorge A. Merkle
Footnotes
Footnotes
1 According to its website, http://www.alvatonfire.com/about-us/, and the "Alvaton Fire Department is one of nine volunteer fire departments serving Warren County Kentucky outside the City of Bowling Green."
2 SAFER grants were created "to provide funding directly to fire departments and volunteer firefighter interest organizations in order to help them increase the number of trained, 'front line' firefighters available in their communities." http://www.fema.gov/firegrants/safer/indix.shtm . (Emphasis added.) Compare 10-ORD-092 (because "Kentucky Consumer Advocate Network obtains 'approximately 70%' of the funding it expends in Kentucky from block grant funds allocated to it by the Cabinet for Health and Family Services, Department for Behavioral Health, Developmental and Intellectual Disabilities," and "[t]hese funds are deposited into the State Treasury upon receipt, are appropriated by the General Assembly per Section 230 of the Kentucky Constitution, and undergo continuous monitoring by the Legislative Research Commission and the Department[,]" KYCAN is a "public agency" within the meaning of KRS 61.870(1)(h)).
3 Pursuant to KRS 61.870(2):
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency .
(Emphasis added.)
4 During its 2012 Regular Session, the Kentucky General Assembly amended KRS 61.870(1)(h) to exclude "any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process." This language does not alter the relevant analysis here nor will the amended version take effect until July 12, 2012.